Benson Mugo Kinyua v Peter Muriuki Kinyua [2014] KEHC 12 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT N0. 219 OF 2013

BENSON MUGO KINYUA..............................................APPLICANT

VERSUS

PETER MURIUKI KINYUA........................................RESPONDENT

RULING

The Notice of  Motion dated 20th March 2014 is brought pursuant to  Order   45   (1)  (a) Civil Procedure Rules and section 80 (a),  1A  and 1B  Civil Procedure Act  and seeks that  the court  reviews the orders given on 14th February 2014, and allows the  applicant to file the appeal out of time. This is because, the applicant had filed an application dated 12th July 2013, seeking leave to file appeal out of time. That application was  dismissed on  14/02/2014 on  grounds that the  applicant  had  not  provided the   proceedings from the lower court, to  demonstrate that the judgment was indeed read in  the absence of  parties and/ or  their advocates, and that no notice of  delivery of  the judgment was ever given. There was also no draft memo of appeal, so the court could not determine whether there was an  arguable appeal, and the former counsel for  the  applicant  had  not sworn  any affidavit to confirm the claims made by the applicant.

It is now argued that the applicant has since filed a draft memorandum of appeal and the former advocate closed shop in Nakuru and cannot be traced to swear an affidavit.

The  applicant explains that the  delay in  filing  the appeal was due to  the missing court file  which was a fact beyond his control and the  court is urged to  be  guided by  the overriding objectives as provided under the Civil  Procedure Act  section 1A and 1B,  so  as to  achieve and ensure the just, expeditious and proportionate resolution of the dispute.

The application is opposed on grounds that there are no new grounds to warrant review, and  these  are  just  delaying tactics aimed at stalling execution.

Mr.   Mureithi argues that  under  Order 45,   Civil   Procedure Rules, the purpose of  review is that  if  there were material facts or evidence  not   availed  to  the court at  the time the matter was heard and the   matters came to  the attention  of the court after the  decision has been made, then conditions for  granting review  exists.

The  provisions of Order 45  Rule  1(1) states:-

"1 (1) Any person considering himself aggrieved ………

(a)  ………………………………….

(b) …………………………………….

and whom  from  discovering  of   new and   important evidence  which,  after the  exercise of  due  diligence, was  not within his  knowledge or could not be produced by him  at  the  time when the ......  order  made.........   desires   to obtain a review ....... may apply for review of ............ without unreasonable delay." (Emphasis mine)

Whereas the issues raised revoke a lot  of  sympathy for  the applicant, in  my  view  they are issues which with  just a little bit  of diligence, the applicant could have raised at the initial submissions when the first application was heard. What the applicant has done now is to fill the gaps pointed out by the court in its ruling. This amounts to patching up the applicant's cause so as to fit in with   the omission noted in the court’s ruling. I am   certain this is not the kind of scenario contemplated by Order 45 Rule 1(1). In fact what is sought to be obtained is a setting aside of the earlier orders in what is akin to an appeal. I find no merit in the prayers and the application is dismissed with costs to the respondent.

Delivered and dated this 13th day of August 2014 at Nakuru.

H.A. OMONDI

JUDGE